In this case, the State Plaintiffs have filed a Motion for Summary Judgment (ECF No. 72), on April 26, 2018, and the Individual Plaintiffs filed a Motion for Summary Judgment (ECF No. 79), on the same day. Plaintiffs seek judgment as a matter of law on all of their claims. The parties appeared at a hearing on these motions and presented oral arguments on August 1, 2018. See Hr'g Tr., ECF No. 163. For the following reasons, the Court finds Plaintiffs' motions for summary judgment should be and are hereby GRANTED in part and DENIED in part.
I. BACKGROUND
First, the Court identifies the parties, next the legal backdrop of this dispute, and then the parties' claims, drawing in large part on those facts set out in the Order denying Defendants' motions to dismiss. See July 24, 2018 Order, ECF No. 155. Following these sections, this order will analyze the claims.
Plaintiffs are comprised of three states-Texas, Louisiana, and Indiana, (collectively, the "State Plaintiffs"), and seven individual Plaintiffs-Chad Everett and Jennifer Kay Brackeen (the "Brackeens"), Nick and Heather Libretti (the "Librettis"), Altagracia Socorro Hernandez ("Ms. Hernandez"), and Jason and Danielle Clifford (the "Cliffords") (collectively, the "Individual Plaintiffs") (together with the State Plaintiffs, "Plaintiffs"). State Pls.' Br. Supp. Mot. Summ. J. 1-2, ECF No. 74 [hereinafter "State Pls.' Br."]. Defendants are the United States of America; the United States Department of the Interior (the "Interior") and its Secretary Ryan Zinke ("Zinke") in his official capacity; the Bureau of Indian Affairs (the "BIA") and its Director Bryan Rice ("Rice") in his official capacity; the BIA Principal Assistant Secretary for Indian
Plaintiffs seek to declare unconstitutional certain provisions of the ICWA and its accompanying regulations (codified at 25 C.F.R. part 23), known as the Indian Child Welfare Act Proceedings (the "Final Rule"), as well as certain provisions of the Social Security Act (the "SSA") that predicate federal funding for portions of state child-welfare payments on compliance with the ICWA. Plaintiffs argue that the ICWA and the Final Rule implement a system that mandates racial and ethnic preferences, in direct violation of state and federal law. Am. Comp. ¶ 193, ECF No. 35;
A. The ICWA and the SSA
Congress passed the ICWA in 1978 in response to rising concerns over "abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes." Miss. Band of Choctaw Indians v. Holyfield ,
The ICWA established "minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes."
Absent good cause, the state court shall transfer proceedings concerning an Indian child to the Indian child's tribal court.
State agencies and courts must notify potential intervenors and the Director of the BIA of an Indian child matter.
The ICWA dictates that an Indian parent or guardian may not give valid consent to termination of parental rights before ten days after the birth of the Indian child.
The ICWA places recordkeeping duties on state agencies and courts-to demonstrate their compliance with the statute.
If the state court or prospective guardian fails to comply with the ICWA, the final child custody orders or placements may be overturned, whether on direct appeal or by another court of competent jurisdiction.
Congress has also tied child welfare funding to compliance with the ICWA. The SSA requires states who receive child welfare funding through Title IV-B, Part 1 of the SSA to file annual reports, including a description of their compliance with the ICWA. Social Security Amendments Act of 1994, Pub. L. No. 103-432, § 204,
Congress expanded the requirement for states to comply with the ICWA to receive SSA funding in 1999 and 2008 when it amended Title IV-E to require states to certify ICWA compliance to receive foster care and adoption services funding. Foster Care Independence Act of 1999, Pub. L. No. 106-69, § 101,
In fiscal year 2018, Congress allocated to Texas approximately $410 million in federal funding for Title IV-B and Title IV-E programs, Louisiana received approximately $64 million, and Indiana received approximately $189 million. Am. Compl. ¶¶ 76-78, ECF No. 35. Plaintiffs argue that HHS and Secretary Azar have the authority to administer funding under Title IV-B and Title IV-E and are vested with discretion to approve or deny a state's compliance with the requirements of
B. The 1979 Guidelines and Final Rule
In 1979, before passage of the Final Rule, the BIA promulgated the Guidelines for State Courts-the Indian Child Custody Proceedings (the "1979 Guidelines").
In June 2016, the BIA promulgated the Final Rule, which purported to "clarify the minimum Federal standards governing implementation of the [ICWA]" and to ensure that it "is applied in all States consistent with the Act's express language."
Plaintiffs contend the main departure from the previous decades of practice under the ICWA was the Final Rule's definition of the 'good cause' exception to the preference placements and the evidentiary standard required to show good cause. Am. Compl. ¶ 116, ECF No. 35; Ind. Pls.' Br. 60-63, ECF No. 80. The Final Rule noted that "State courts ... differ as to what constitutes 'good cause' for departing
Plaintiffs contrast the text of the 1979 Guidelines where "the use of the term 'good cause' was designed to provide state courts with flexibility" with the Final Rule, which now claims that "Congress intended the good cause exception to be narrow and limited in scope." Compare
Beyond limiting what state courts may consider in determining "good cause," the Final Rule places more responsibilities on states to determine if the child is an Indian child.
In an involuntary foster care or termination of parental rights proceeding, the Final Rule requires state courts to ensure and document that the state agency has used "active efforts" to prevent the breakup of the Indian family.
When determining if the child is an Indian child, only the Indian tribe of which the child is believed to be a member may determine whether the child is a member of the tribe or eligible for membership.
When an Indian child is a member or eligible for membership in only one tribe, that tribe must be designated by the state court as the Indian child's tribe. But when the child meets the definition of "Indian
The Final Rule instructs state courts to dismiss a voluntary or involuntary child custody proceeding when the Indian child's residence or domicile is on a reservation where the tribe exercises exclusive jurisdiction over child custody proceedings.
C. The Adoption Proceedings
1. The Brackeens and A.L.M.
The Brackeens wished to adopt A.L.M, who was born in Arizona to an unmarried couple, M.M. and J.J. Ind. Pls.' App. Supp. Mot. Summ. J. 60, ECF No. 81 [hereinafter "Ind. Pls.' App."]. A.L.M. is an Indian child under the ICWA and the Final Rule because he is eligible for membership in an Indian tribe-his biological mother is an enrolled member of the Navajo Nation and his biological father is an enrolled member of the Cherokee Nation.
In May 2017, a Texas state court terminated the parental rights of A.L.M.'s biological parents, making him eligible for adoption under Texas law.
In July 2017, the Brackeens filed an original petition seeking to adopt A.L.M.
Under the ICWA and the Final Rule placement preferences, absent good cause, an Indian child should be placed with a member of the child's extended family, a member of the child's Indian tribe, or another Indian family, in that order. See
In January 2018, the Brackeens successfully petitioned to adopt A.L.M., but under the ICWA and the Final Rule, the Brackeens' adoption of A.L.M. is open to collateral attack for two years.
2. The Librettis and Baby O.
The Librettis are a married couple living in Sparks, Nevada. See Ind. Pls.' App. 66, ECF No. 81. They sought to adopt Baby O. when she was born in March 2016. Id. at 67. Baby O.'s biological mother, Ms. Hernandez, felt that she would be unable to care for Baby O. and wished to place her for adoption at her birth. Id. at 72. Ms. Hernandez has continued to be a part of Baby O.'s life and she and the Librettis visit each other regularly. Id. at 73. Baby O.'s biological father, E.R.G., descends from members of the Ysleta del sur Pueblo Tribe (the "Pueblo Tribe"), located in El Paso, Texas. Id. at 69. At the time of Baby O.'s birth, E.R.G. was not a registered member of the Pueblo Tribe. Id. at 73.
The Pueblo Tribe intervened in the Nevada custody proceedings in an effort to remove Baby O. from the Librettis. Id. at 69. Once the Librettis joined the challenge to the constitutionality of the ICWA and the Final Rule, the Pueblo Tribe indicated its willingness to discuss settlement. Id. at 69. The Librettis have agreed to a settlement with the tribe that would permit them to petition for adoption of Baby O. Id. at 70. But Plaintiffs point out that any settlement would still be subject to collateral attack under the ICWA for two years. Am. Compl. ¶ 168, ECF No. 35. The Librettis intend to petition to adopt Baby O. as soon as they are able and are the only people who have indicated an intent to
Similar to the Brackeens, the Librettis intend to provide foster care for and possibly adopt additional children in need. Id. at 70. Due to their experiences with the ICWA, the Librettis are "reluctant to provide a foster home for other Indian children in the future." Id.
3. The Cliffords and Child P.
The Cliffords live in Minnesota and seek to adopt Child P. See Ind. Pls.' App. 2, ECF No. 81. Child P.'s maternal grandmother is a registered member of the White Earth Band of Ojibwe Tribe (the "White Earth Band"). Id. at 4. Child P. is a member of the White Earth Band for the purposes of the ICWA only. Id. The Minnesota state court considered itself bound by the White Earth Band's pronouncement and concluded that the ICWA must apply to all custody determinations concerning Child P. Id. at 4. However, because the ICWA placement preferences apply, county officials removed Child P. from the Cliffords. Id. at 5-6. Child P. was placed in the care of her maternal grandmother-whose foster licensed had been revoked-in January 2018. Id. at 3-6.
Child P.'s guardian ad litem supports the Cliffords' efforts to adopt her and agrees that the adoption is in Child P's best interest. Id. at 5. However, due to the application of the ICWA, the Cliffords and Child P. remain separated and the Cliffords face heightened legal barriers to adopt Child P. Id. at 53. If the Cliffords are successful in petitioning for adoption, that adoption may be collaterally attacked for two years under the ICWA.
D. State Plaintiffs
Texas, Louisiana, and Indiana bring this suit in their capacities as sovereign states. See Am. Compl. ¶ 178, ECF No. 35. They claim that the ICWA and the Final Rule harm state agencies charged with protecting child welfare by usurping their lawful authority of the regulation of child custody proceedings and management of child welfare services.
Plaintiffs argue that the ICWA and the Final Rule place significant responsibilities and costs on state agencies and courts to carry out federal Executive Branch directives.
The State Plaintiffs require their state agencies and courts to act in the best interest of the child in foster care, preadoptive,
In every child custody case, the ICWA and Final Rule require the State Plaintiffs to undertake additional responsibilities, inquiries, and costs. As an example of how the ICWA and the Final Rule affect state administrative and judicial procedures, State Plaintiffs submit the Texas CPS Handbook (the "Texas Handbook"). Ind. Pls.' App. 16 (Texas Handbook) § 1225, ECF No. 73 [hereinafter "Texas Handbook"]. The Texas Handbook contains Texas DFPS's policies and procedures for compliance with the ICWA and the Final Rule.
Indiana and Louisiana have similar requirements in place to assure that their child welfare systems comply with the ICWA and the Final Rule. See
The ICWA and the Final Rule require state courts to ask each participant, on the record, at the commencement of child custody proceedings whether the person knows or has reason to know whether the child is an Indian child and directs the parties to inform the court of any such information that arises later.
The statutes also affect the State Plaintiffs' rules of civil procedure. The ICWA section 1911(c) and the Final Rule dictate that the Indian child's custodian and the child's tribe must be granted mandatory intervention. Texas Rule of Civil Procedure 60 permits Texas courts to strike the intervention of a party upon a showing of sufficient cause by another party, but the ICWA imposes a different legal standard of intervention to child custody cases involving Indian children. TEX. R. CIV. P. 60 ;
Finally, the ICWA and the Final Rule override the State Plaintiffs' laws with respect to voluntary consent to relinquish parental rights. See
The ICWA and the Final Rule also affect how long a final adoption decree is subject to challenge. Under the ICWA, state courts must vacate a final adoption decree involving an Indian child, and return the child to the biological parent, any time within two years if the parent withdraws consent on the grounds that it was obtained through fraud or duress.
Plaintiffs moved for summary judgment on all counts, arguing there is no dispute of material fact and only questions of law remain. See ECF Nos. 72, 79. The motions are ripe for review.
II. LEGAL STANDARD
The Court may grant summary judgment where the pleadings and evidence show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc. ,
When reviewing the evidence on a motion for summary judgment, the Court must decide all reasonable doubts and inferences in the light most favorable to the non-movant. See Walker v. Sears, Roebuck & Co. ,
III. ANALYSIS
Plaintiffs move for summary judgment, claiming that the ICWA and the Final Rule violate: (1) the equal protection requirements of the Fifth Amendment; (2) the Due Process Clause of the Fifth Amendment; (3) the Tenth Amendment; and (4) the proper scope of the Indian Commerce Clause. Plaintiffs also argue that: (1) the Final Rule violates the Administrative Procedure Act (the "APA"); and (2) the ICWA violates Article I of the Constitution.
A. Fifth Amendment Equal Protection Claim
Plaintiffs claim that sections 1915(a)-(b), section 1913(d), and section 1914 of the
1. Appropriate Level of Review
Unlike the Fourteenth Amendment, the text of the Fifth Amendment does not contain an equal protection clause. But courts "employ the same test to evaluate alleged equal protection violations under the Fifth Amendment as under the Fourteenth Amendment." Richard v. Hinson ,
The parties rely on precedent developed by the Supreme Court's (and various circuits') review of statutes focused on American Indians and other native peoples. See Mancari ,
a. Ancestry as Racial Classification
Plaintiffs argue that the placement preferences in sections 1915(a)-(b) of the ICWA, as well as the collateral-attack provisions in section 1913(d) and section 1914, include race-based classifications like those in Rice , which must survive strict scrutiny review. Ind. Pls.' Br. 41, ECF No. 80; State Pls.' Br. 54-57, ECF No. 74. In Rice ,
b. Tribal Membership as a Political Classification
Defendants respond that the ICWA's placement preferences rely on political classifications like the statute in Mancari , rather than racial classifications like the statute in Rice , and are therefore only subject to rational basis review. Fed. Defs.' Resp. Ind. 11, ECF No. 123; Trib. Defs.' Resp. 16, ECF No. 118. In Mancari , the plaintiffs sought to declare unconstitutional a BIA hiring standard that gave preference to Indian applicants. See Mancari ,
c. The ICWA Classification
The specific classification at issue in this case mirrors the impermissible racial classification in Rice , and is legally and factually distinguishable from the political classification in Mancari. The ICWA's membership eligibility standard for an Indian child does not rely on actual tribal membership like the statute in Mancari .
2. Strict Scrutiny Review
Because the ICWA relies on racial classifications, it must survive strict scrutiny. Courts "apply strict scrutiny to all racial classifications to 'smoke out' illegitimate uses of race by assuring that [the government] is pursuing a goal important enough to warrant use of a highly suspect tool." Grutter v. Bollinger ,
a. Compelling Interest Requirement
Here, the Federal Defendants have not offered a compelling governmental interest that the ICWA's racial classification serves, or argued that the classification is narrowly tailored to that end. Rather, the Federal Defendants rest their entire defense to this claim on their argument that the ICWA classified Indians politically, which requires only that it be rationally tied to fulfillment of Congress's unique obligation to the Indians. Fed. Defs.' Resp. Ind. 25, ECF No. 123. Given the ICWA is a race-based statute,
b. Narrow Tailoring Requirement
The Federal Defendants argue that "fulfilling Congress's unique obligation toward the Indians" is a legitimate government purpose supporting their rational basis analysis. Fed. Defs.' Resp. Ind. 312 ECF No. 123 (citing Mancari ,
As stated above, a racial statute must be narrowly tailored to a compelling government interest to survive strict scrutiny. Grutter ,
Here, the statute is broader than necessary because it establishes standards that are unrelated to specific tribal interests and applies those standards to potential Indian children. First, portions of the ICWA preferences are unrelated to specific tribal interests in that the statute includes as a priority a child's placement with any Indian, regardless of whether the child is eligible for membership in that person's tribe. See
The ICWA's racial classification applies to potential Indian children, including those who will never be members of their ancestral tribe, those who will ultimately be placed with non-tribal family members, and those who will be adopted by members of other tribes. Because two of the three preferences have no connection to a child's tribal membership, this blanket classification of Indian children is not narrowly tailored to a compelling governmental interest and thus fails to survive strict scrutiny review. For these reasons, the Court finds that Plaintiffs' motion for summary judgment on their equal protection claim is GRANTED.
B. Article I Non-Delegation Claim
State Plaintiffs also argue that section 1915 (c) of the ICWA is unconstitutional because it delegates congressional power to Indian tribes in violation of the non-delegation doctrine outlined in Article I of the Constitution. Article I, known as the vesting clause, provides: "All legislative Powers ... shall be vested in a Congress of the United States." U.S. CONST. I, § 1, cl.1. State Plaintiffs argue that the ICWA impermissibly grants Indian tribes the authority to reorder congressionally enacted adoption placement preferences by tribal decree and then apply their preferred order to the states. State Pls.' Br. 47, ECF No. 74. They also contend that section 23.130 (b) of the Final Rule, which provides that a tribe's established placement preferences apply over those specified in the ICWA, violates the doctrine.
1. Legislative or Regulatory Power
Distinguishing between permissible and non-permissible delegations of congressional power usually requires asking whether Congress is delegating discretion to create law or discretion to execute law. Loving v. United States ,
An exercise of regulatory power does not empower an entity to "formulate generally applicable rules of private conduct." Ass'n of Am. R.R.'s ,
Here, the Tribes were granted the power to change the legislative preferences Congress enacted in the ICWA, and those changes are binding on the States. See
2. Federal Actor Requirement
Alternatively, even if Congress granted permissible regulatory power through the ICWA, it impermissibly granted federal regulatory power to an Indian tribe. Congress certainly has authority to regulate the Indian tribes. U.S. CONST. , art. 1, § 8, cl. 3. Likewise, tribes unquestionably may regulate conduct on tribal lands and reservations. Atkinson Trading Co., Inc. v. Shirley ,
Nor is section 1915(c) saved because, as Tribal Defendants argue, Congress recognized that Indian tribes carry a unique, long-held, quasi-sovereign status, and may thus delegate federal authority to them. Trib. Defs.' Resp. 36-37, ECF No. 118. An Indian tribe, like a private entity, is "not part of the [federal] Government at all," which "would necessarily mean that it cannot exercise...governmental power."
Therefore, whatever label is affixed to the tribes by Defendants is inapposite. No matter how Defendants characterize Indian tribes-whether as quasi-sovereigns or domestic dependent nations-the Constitution does not permit Indian tribes to exercise federal legislative or executive regulatory power over non-tribal persons on non-tribal land.
C. Tenth Amendment Anti-Commandeering Claim
Plaintiffs also claim that the ICWA and the Final Rule commandeer the States in violation of the Tenth Amendment. State Pls.' Br. 37, ECF No. 74; Ind. Pls.' Br. 68, ECF No. 80. They specifically challenge the ICWA sections 1901-23 and 1951-52.
The anti-commandeering principle "is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the states." Murphy v. Nat'l Collegiate Athletic Ass'n , --- U.S. ----,
The Court must therefore first consider whether Congress may require state courts and agencies to apply federal standards to exclusively state created causes of action.
1. Commandeering State Courts and Agencies
Plaintiffs argue that the ICWA unconstitutionally requires state courts and executive
a. Federal Standards Applied in State Created Claims
It is unquestionably true that state and federal courts share concurrent jurisdiction in many legal matters. See generally Mims v. Arrow Fin. Ser., LLC ,
b. The Murphy Standard
In Murphy , the Supreme Court ruled that a federal statute prohibiting state legislatures from authorizing sports gambling violated the anti-commandeering doctrine because it directly regulated States rather than individuals. See Murphy ,
Congress violated all three principles when it enacted the ICWA. First, the ICWA offends the structure of the Constitution by overstepping the division of federal and state authority over Indian affairs by commanding States to impose federal standards in state created causes of action. See
That this case primarily involves state courts, rather than legislative bodies or executive officers, does not mean the principles outlined in Murphy, New York , and Printz do not apply. In those cases, the Supreme Court relied on the idea that "the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States." Printz ,
Nor does the Indian Commerce Clause save the ICWA's mandate to the states. Federal Defendants assert that the plenary power the Indian Commerce Clause grants Congress permits directing states in child custody proceedings involving Indian children eligible for tribal membership, therefore no power was reserved to the states, and no Tenth Amendment violation is possible. Fed. Defs.' Resp. States 29, ECF No. 121. But regardless of the reach of the Indian Commerce Clause, no provision in the Constitution grants Congress the right to "issue direct orders to the governments of the States," and the Indian Commerce Clause can be no different. Cf. Murphy ,
2. State Law Preemption
Finally, the Tribal Defendants argue that the anti-commandeering principle does not apply because the ICWA, enacted pursuant to the Indian Commerce Clause, simply preempts conflicting state laws regulating individuals. Trib. Defs.' Resp. 29, ECF No. 118. Preemption generally applies when federal and state law conflict over matters in which they have concurrent jurisdiction. See Wyeth v. Levine ,
Preemption arguments therefore cannot rescue the ICWA's impermissible direct commands to the states. The ICWA is structured in a way that directly requires states to adopt and administer comprehensive federal standards in state created causes of action. Therefore, the Court finds that sections 1901-23 and 1951-52 of the ICWA violate the anti-commandeering doctrine. For these reasons, the Court finds that Plaintiffs' motion for summary judgment on their Tenth Amendment anti-commandeering claim is GRANTED.
D. Administrative Procedure Act Claims
Plaintiffs also claim that the Final Rule violates the APA because it: (1) purports to implement an unconstitutional law and therefore must be vacated as contrary to law; (2) exceeds the scope of Interior's statutory regulatory authority under the ICWA; (3) reflects an impermissibly ambiguous construction of the statute; and (4) is otherwise arbitrary and capricious. Ind. Pls.' Reply at 16, ECF No. 143; State Pls.' Reply 18, ECF No. 142; see also Ind. Pls' Br., ECF 80. Defendants respond that the Final Rule was properly passed and promulgated, deserves Chevron deference, and stands after Chevron review. Trib. Defs.' Resp. 39-47, ECF No. 118; Fed. Defs.' Resp. States 41, ECF No. 121.
1. Constitutionality Requirement
As a threshold matter, if the Final Rule purports to implement an unconstitutional statute, the Court must hold it unlawful and set it aside.
2. APA Statutory Authority Requirement
Plaintiffs argue that the challenged portions of the Final Rule exceed the scope of the BIA's regulatory authority under the ICWA because the Final Rule issues binding regulations-which the BIA previously deemed unnecessary to enforce the ICWA-without the statutory authority necessary to do so. Ind. Pls.' Reply 17-19, ECF 143; State Pls.' Reply 18, ECF No. 142. "Expanding the scope" of a BIA regulation "in vast and novel ways is valid only if it is authorized" by the ICWA. Chamber of Commerce v. Dep't of Labor ,
Here, Congress expressly and unambiguously granted the Secretary of Interior authority to regulate if necessary. Congress stated in the ICWA that "within one hundred and eighty days after November 8, 1978, the Secretary shall promulgate such rules and regulations as may be necessary to carry out the provisions in this chapter." 25 U.S.C § 1952 (emphasis added); see
Promulgation of regulations with legislative effect with respect to most of the responsibilities of state or tribal courts under the act, however, is not necessary to carry out the Act. State and tribal courts are fully capable of carrying out the responsibilities imposed on them by Congress without being under the direct supervision of this Department. Nothing in the legislative history indicates that Congress intended this Department to exercise supervisory control over state or tribal courts or to legislate for them with respect to Indian child custody matters. For Congress to assign an administrative agency such supervisory control over courts would be an extraordinary step ... so at odds with concepts of both federalism and separation of powers that it should not be imputed to Congress in the absence of an expressdeclaration of Congressional intent to that effect.
Here, as outlined in the Court's findings supra on Plaintiffs' anti-commandeering and non-delegation claims, much of the authority to carry out the ICWA was delegated to the States and Indian tribes. The BIA admitted state and tribal courts were fully capable of carrying out the ICWA without direct federal regulation and allowed them to do so for over thirty years.
A current agency interpretation "in conflict with its initial position, is entitled to considerably less deference" and is met with "a measure of skepticism." Chamber ,
Assuming for the sake of argument that Congress granted the BIA statutory authority to implement the legally binding Final Rule, the Court will next consider whether the Final Rule "fills in the statutory gaps" of an ambiguous statute, and is entitled to Chevron deference. See Brown & Williamson Tobacco Corp. ,
3. Chevron Deference and the Good Cause Standard
When "a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron ,
Here, Plaintiffs claim that the BIA violated the APA when it promulgated § 23.132(b) of the Final Rule, which limits the evidence that may be considered by courts to determine "good cause" under section 1915 of the ICWA. Ind. Pls.' Resp. 60-63, ECF No. 80; State Pls.' Reply 18, ECF No. 142. Defendants argue that the Final Rule's interpretation of "good cause" is entitled to Chevron deference. Trib. Defs.' Resp. 39-47, ECF No. 118; Fed Defs.' Resp. Ind. 45-49, ECF No. 123.
"Where the text and structure of a statute unambiguously foreclose an agency's statutory interpretation, the intent of Congress is clear, and 'that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.' " Chamber of Comm. ,
Section 23.132(b) of the Final Rule interprets section 1915(b) of the ICWA, which provides in "any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary , to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families."
Here, Plaintiffs contend that the Final Rule departs from the BIA's original 1979 interpretation and contradicts the "good cause" standard set by the ICWA because the Final Rule heightens the evidentiary burden. Ind. Pls.' Reply 20-23, ECF No. 143. Defendants argue that "good cause" is an ambiguous term and it was therefore appropriate for the BIA to promulgate-as part of their interpretation of the term good cause-the necessary evidentiary standard. Trib. Defs.' Resp. 44-45, ECF No. 118; Fed. Defs.' Resp. Ind. 45, ECF No. 123. Plaintiffs counter that the default evidentiary standard in civil cases, preponderance of the evidence, applies to section 1915 and accordingly the Final Rule's clear and convincing evidence standard is not a permissible construction of the statute. Ind. Pls.' Reply 20, ECF No. 143. The issue here is whether Congress established an unambiguous evidentiary standard in section 1915 of the ICWA. That determination is distinct from interpreting the meaning of the term good cause.
Congress did not codify a preponderance of the evidence standard in section 1915 of the ICWA. But other portions of the ICWA specifically included heightened evidentiary burdens. See
When interpreting section 1915 the "silence is inconsistent with the view that Congress intended to require a special, heightened standard of proof" and "it is fair to infer that Congress intended the ordinary preponderance [of the evidence] standard to govern ..." Grogan v. Garner ,
Because the Court finds that the BIA lacked statutory authority to enact the challenged portions of the Final Rule, and that the evidentiary standard in section 1915 is unambiguous, Defendants are not entitled to Chevron deference and the Final Rule's change of standard to clear and convincing evidence is contrary to law. For these reasons, the Court finds that Plaintiffs' motion for summary judgment on their APA claim is GRANTED.
E. Fifth Amendment Due Process Claim
Individual Plaintiffs alone claim that sections 1910 (a) and (b) of the ICWA, as well as the Final Rule, violate the Fifth Amendment Due Process Clause. Ind. Pls.' Br. 49-55, ECF No. 80. Plaintiffs argue that ICWA's racial preferences "disrupt ... intimate familial relationships based solely on the arbitrary fact of tribal membership" and that families have a fundamental right "to make decisions concerning the care, custody, and control of their children." Id. at 49, 50. The Federal Defendants respond that this Court has no basis to "recognize a fundamental right where the Supreme Court and Fifth Circuit have refused to do so." Fed. Defs.' Resp. Ind. 33, ECF No. 123. Defendants are correct.
The Supreme Court has recognized both custody and the right to keep the family together as fundamental rights. See Troxel v. Granville ,
F. Indian Commerce Clause Claim
Plaintiffs also claim Congress did not have the constitutional authority to pass sections 1901-23 and sections 1951-52 of the ICWA under the Indian Commerce Clause. Ind. Pls.' Br. 66, ECF No. 80; State Pls.' Br. 49-52, ECF No. 74. Defendants counter that the Indian Commerce Clause grants Congress plenary authority over Indian Affairs. Fed. Def's Resp. Ind. 35, ECF No. 123; Trib. Defs.' Resp. 21-28, ECF No. 118. But as shown above, Murphy does not permit Congress to directly command the States in this regard, even when it relies on Commerce Clause power. Murphy ,
IV. CONCLUSION
For the reasons stated above, the Court finds that Plaintiffs' Motions for Summary Judgment (ECF Nos. 72, 79) should be and are hereby GRANTED in part and DENIED in part.
SO ORDERED on this 4th day of October, 2018.
Notes
Initially Plaintiffs sued Michael Black in his official capacity as Acting Assistant Secretary of Indian Affairs. See Orig. Compl. ¶ 17, ECF No. 1. On September 13, 2017, Secretary of the Interior Ryan Zinke appointed Tahsuda as the Department of Interior's Principal Assistant Secretary of Indian Affairs. See Press Release, Secretary Zinke Names John Tahsuda III the Principal Deputy Assistant Secretary for Indian Affairs , Dep't of the Int. , (Sept. 13, 2017), https://www.doi.gov/pressreleases/secretary-zinke-names-john-tahsuda-iii-principal-deputy-assistant-secretary-indian. Accordingly, Tahsuda has been substituted as a Defendant.
See also Br. of Amicus Curiae 123 Federally Recognized Indian Tribes, et al. in Opposition to Plaintiffs' Motions for Summary Judgment 1, ECF No. 138. ("Congress enacted the Indian Child Welfares Act of 1978 ("ICWA" or "the Act"), 25 U.S.C. 1901 et seq. , in response to a nationwide crisis-namely, the widespread and wholesale displacement of Indian children from their families by state child welfare agencies at rates far higher than those of non-Indian families.").
While a "court of competent jurisdiction" is not defined in the ICWA or the Final Rule, state appellate courts and federal district courts have heard challenges to adoption proceedings under the ICWA. See e.g., Oglala Sioux Tribe v. Van Hunnik ,
Three federally recognized tribes reside in Texas-Yselta del Sur Pueblo in El Paso, Texas; the Kickapoo Tribe in Eagle Pass, Texas; and the Alabama-Coushatta Tribe near Livingston, Texas. Both the Kickapoo Tribe and the Alabama-Coushatta Tribe have reservations in Texas. See State Pls' App at 481, ECF No. 73. Four tribes reside in Louisiana-the Chitimacha Tribe in Charenton, Louisiana; Coushatta Tribe in Elton, Louisiana; the Tunica-Biloxi Tribe in Marksville, Louisiana; and the Jena Band of Choctaw Indians in Jena, Louisiana. Am. Compl. ¶ 180, ECF No. 35. One federally recognized tribe resides in Indiana-the Pokagon Band of Potawatomi Indians. Id. ¶ 181. For example, as of December 2017, there were thirty-nine children in the care of Texas DFPS who were verified to be enrolled or eligible for membership in a federally recognized tribe, many of them living in Texas DFPS homes. Id. ¶ 189.
See supra note 3.
The Federal Defendants disputed facts relating to Individual Plaintiffs' standing in this case. See Fed. Defs.' Br. Resp, ECF No. 124-1. But the dispute over standing was resolved in the July 24, 2018 Order, ECF No. 156. Neither the Federal nor Tribal Defendants have disputed facts in the record relating to the claims to be resolved by summary judgment. See Tribal Defs.' Br. Supp. Resp. Mot. Summ. J. 2 n.1, ECF No. 118. ("[Individual] Plaintiffs rely on none of the other facts in their brief and declarations to support their legal arguments, and none is relevant to the issues currently before the court.").
Individual Plaintiffs alone argue the Fifth Amendment due process claim. See generally Ind. Pls.' Br.; State Pls.' Br.; Ind. Pls.' Reply; State Pls.' Reply. State Plaintiffs alone argue the Article I non-delegation claim. Id.
Defendants rely on a number of cases in support of their argument. Those cases confirm however that this authority is directed at Indian self-government and affairs on or near Indian lands. In United States v. Antelope , the Supreme Court found no equal protection violation because the legislation involved "federal regulation of criminal conduct within Indian country implicating Indian interest."
At the hearing, the Federal Defendants identified specific exceptions to the general rule that tribal membership eligibility depends on biological ancestry. Aug. 1, 2018 Hr'g Tr. at 83:1-11. The Federal Defendants noted some tribes may include African Americans who are descendants of freed slaves and that some tribes may include "adopted whites" as members.
Notably, in Adoptive Couple v. Baby Girl , the Supreme Court mentioned that an interpretation of provisions of the ICWA that prioritizes a child's Indian ancestry over all other interests "would raise equal protection concerns."
In Rice , after determining that ancestry can be a proxy for race, the Supreme Court noted the legislation at issue used ancestry "as a racial definition and for a racial purpose," and subsequently referred to the legislation as being "based on race." See Rice ,
Both Defendants requested an opportunity to provide additional briefing if the Court concludes the ICWA contains racial preferences. However, Defendants were on notice that Plaintiffs sought judgment on all of their claims. This obligated Defendants to meet their burden. See Apache Corp. v. W & T Offshore, Inc. ,
The Federal Defendants similarly point to Congress's obligation to Indian tribes to justify Congressional authority to enact the ICWA. To bolster those arguments, it notes that Congress intended the ICWA to "protect the 'continued existence and integrity of Indian tribes ' by protecting their most vital resources-their children." Fed. Defs.' Resp. Ind. 37, ECF No. 123 (emphasis added) (quoting
Texas provides that the Alabama-Coushatta-Tribe of Texas has filed with DFPS a notice of different placement preferences. State Pls.' App. at 918, ECF No. 73.
These provisions include the congressional findings and declaration of policy, definitions, child custody proceedings, record keeping, information availability, and timetables. See
The ICWA includes federal requirements that apply in a state child custody proceedings including: involuntary proceedings, voluntary proceedings, and proceedings involving foster-care, preadoptive, or adoptive placement, or termination of parental rights. See
As an example, the ICWA and the Final Rule require State Plaintiffs' agencies and courts to maintain indefinitely records of placements involving Indian children, and subject those records to inspection by the Director of the BIA and the child's Indian tribe at any time, as opposed to simply transferring those records to the BIA so they may keep them indefinitely.
The Texas DFPS must, among other things; serve notice of suit on Indian tribes, verify a child's tribal status, make a diligent effort to find a suitable placement according to the ICWA preferences and show good cause if the preferences are not followed, ensure a child is enrolled in his tribe before referring him for adoption, and keep a written record of the placement decision. State Pls.' App. 28-29, ECF No. 73.
As an example, in 1979 the BIA provided that the good cause standard "was designed to provide state courts with flexibility in determining the disposition of a placement proceeding involving an Indian child."
At the hearing, the Federal Defendants argued that the Final Rule's clear and convincing evidence standard is not binding on state courts. Hr'g Tr. 40:7-20. That argument contradicts the Final Rule itself which clearly implements binding regulations to counteract the very discretion Defendants argue states are allowed. See 25 CFR 23.132(b); see